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NUISANCE by Mind Map: NUISANCE

1. PRIVATE NUISANCE

1.1. Definition

1.1.1. Unlawful interference with a person’s use or enjoyment of land or some right over or in connection with it.

1.1.2. Case: READ v LYONS & CO LTD.

1.2. Elements

1.2.1. 1. Substantial Interference

1.2.1.1. Nuisance is not actionable per se.

1.2.1.2. A plaintiff needs not prove special or particular damage but needs to prove that he has suffered some form of damage in order to succeed in his claim.

1.2.1.3. Nuisance protects a person from: a) Interference with the use, comfort or enjoyment of land. b) Physical damage to land or property.

1.2.1.3.1. Case: WOON TAN KAN (Deceased) & 7 ORS v ASIAN RARE EARTH SDN BHD

1.2.1.3.2. Case: GOH CHAT NGEE & 3 ORS v TOH YAN & ANOR

1.2.2. 2. Unreasonableness

1.2.2.1. Unreasonableness is relevant but not a conclusive factor of whether the interference is unreasonable or otherwise.

1.2.2.2. Generally, for an action in private nuisance to lie in respect of interference with the Plaintiff’s enjoyment of his land, it has to arise from something emanating from the Defendant’s land which are as follows:

1.2.2.3. a) Damage and location of the plaintiff’s and defendant’s premises.

1.2.2.3.1. Case: ST HELEN’S SMELTING v TIPPING, P owned a rubber estate which was situated in an industrial area. Smoke from D’s copper-smelting factory had cause considerable damage to P’s trees.

1.2.2.3.2. A person cannot expect the air in an industrial area to be clean and fresh as in the mountains.

1.2.2.3.3. If the interference causes physical damage to property, then the surrounding circumstances is irrelevant.

1.2.2.3.4. Location is an important factor when the interference is merely to the use, comfort and enjoyment of land as opposed to physical damage to property.

1.2.2.3.5. Case: CHAN JET CHIAT v ALLIED GRANITE MARBLE INDUSTRIES

1.2.2.4. b) Public benefit of the defendant’s activities.

1.2.2.4.1. If the object of D’s conduct benefits the society generally, it is more likely that the conduct will not be deemed unreasonable.

1.2.2.4.2. But D’s activity which benefits the public will still constitute actionable nuisance if the activity causes damage to property or substantial interference to P’s enjoyment of his land.

1.2.2.4.3. Case: PERBADANAN PENGURUSAN TAMAN BUKIT JAMBUL V KERAJAAN MALAYSIA

1.2.2.5. c) Extraordinary sensitivity on the part of the plaintiff.

1.2.2.5.1. Not sympathetic to a P who is extra sensitive, whether the sensitivity is related to P himself or to his property.

1.2.2.5.2. Sensitivity cannot be used as a basis for claiming that D’s conduct constitutes an unreasonable and substantial interference, but once unreasonable and substantial interference is established,sensitivity will not deprive P from obtaining a remedy.

1.2.2.5.3. Case: MCKINNON INDUSTRIES LTD v WALKER

1.2.2.6. d) Interference must be continuous .

1.2.2.6.1. Interference that is continuous or occurs very often would constitute substantial interference.

1.2.2.6.2. Case: DELAWARE MANSIONS LTD V WESTMINSTER CITY COUNCIL.

1.2.2.7. e) Temporary interference and isolated incident.

1.2.2.7.1. General principle: the more serious the interference, the more likely the court will regard it as unreasonable.

1.2.2.7.2. Case: – SEDLEIGH-DENFIELD v O’CALLAGHAN

1.2.2.8. f) Malice

1.2.2.8.1. The existence of malice may cause the defendant’s act to be unreasonable.

1.2.2.8.2. Case: CHRISTIE v DAVEY

2. PUBLIC NUISANCE

2.1. Definition

2.1.1. Arises hen there is an interference with public rights.

2.1.2. Knowing or having the means of knowing of its existence, a person allows it to continue for an unreasonable time or in unreasonable circumstances.

2.1.2.1. Case: LIM KAR BEE v ABDUL LATIF BIN ISMAIL

2.1.3. Case: ATTORNEY GENERAL v PYA QUARRIES LTD, stated that public nuisance arises when an act materially affect the reasonable comfort and convenience of life of a class of the society.

2.2. Persons who may claim

2.2.1. Criminal proceedings - the Public Prosecutoron behalf of government

2.2.2. Civil proceedings - person who suffers specialor particular damage

2.2.2.1. A plaintiff needs not have an interest in land.

2.2.2.2. A plaintiff must have suffered special damage.

2.2.3. Case: -PACIFIC ENGINEERING v HAJI AHMAD RICE MILL -KOPERASI PASARAYA MALAYSIA BHD v UDA HOLDINGS SDN BHD & 41 Ors

3. WHO CAN BE SUED

3.1. 1. Creator

3.1.1. The source or creator of the interference, whether or not he occupies the land from which the interference emanates, will be liable for the nuisance.

3.1.2. Case: SOUTHPORT CORPORATION v ESSO PETROLEUM LTD Test: Who authorised the activity and whether interference is foreseeable from that activity?

3.2. 2. Occupier

3.2.1. All positive acts of interference, including omissions which give rise to a nuisance.

3.2.1.1. Case: MCGOWAN & ANOR V WONG SHEE FUN & ANOR

3.2.2. The acts and omissions of third parties in the following situations.

3.2.2.1. Servant or employee

3.2.2.2. Independent contractor

3.2.2.3. Trespasser

3.2.2.4. Licencess

3.2.2.5. Natural Causes

3.2.2.6. Conduct of previous occupier

3.3. 3. Landowner or landlord

3.3.1. General rule: A landowner who has surrendered possession and control of certain premises.

3.3.2. 3 situations or exceptions where landowner will be liable.

3.3.3. 1. If he has authorised the nuisance • Test: Whether the nuisance is something that is normal and natural as a result of the tenancy or lease?

3.3.3.1. Case: TETLEY v CHITTY A local authority was held liable when nuisance arose from go-karting activities on land which was let by it. Tenant may also be found liable

3.3.4. 2. If he knew or ought to have known of the nuisance before the tenancy became effective.

3.3.4.1. The test is objective. Interference of possible interference should be known and damage to property or discomfort must be reasonably foreseen by persons in D’s position.

3.3.4.2. Case: BREW BROTHERS LTD v SNAX (ROSS) LTD

3.3.5. 3. If he has covenanted to repair or has a right to enter the premises to conduct repair works.

3.3.5.1. General rule: If the nuisance occurs after the tenant has occupied the premises, liability of the landlord depends on the degree of control that he has over the premises.

3.3.5.2. Agreement that the landlord will conduct repair works will make the landlord liable for any interference that arises as a result of any disrepair.

3.3.5.3. Case: PAYNE v ROGERS

4. REMEDIES

4.1. Injunction

4.1.1. To prevent the nuisance from continuing and is suitable for continuing nuisance.

4.2. Monetary Compensation

4.2.1. Easy for physical damage to property.

4.3. Report to the relevant authorities

4.3.1. Most widely use as there are many organization and government bodies whose activities are statutorily governed.

4.4. Self-help: abatement

5. DEFENCES

5.1. Prescription

5.2. Statutory Authority

5.3. Necesstiry

5.4. Consent

5.5. Defence of Property

5.6. Contributory Negligence